Murky Waters

A vase of plastic flowers rests on its side atop a tiny unmarked grave in Section 53 of Phoenix's Greenwood Memory Lawn Cemetery. Valeria Rico Romero was 10 months old when she drowned in a bathtub in September 2000.

Valeria's 24-year-old mother says that, maybe someday, she'll be able to afford a stone for the youngest of her three children.

In fact, Vanessa Rico asked a Phoenix police detective hours after her daughter died if she'll be allowed to be buried next to Valeria when the time comes.

Detective Steve Orona's report does not indicate how he responded. A few minutes later, he jailed Rico on a charge of negligent homicide.

The news riveted Arizonans. It was the first time in state history a parent or caretaker had been charged with responsibility for the accidental drowning death of a child. The circumstances of Valeria's death and the ensuing publicity overshadowed most of the other 27 child drownings in the Valley last year.

Valeria died about 3 p.m. on September 27, 2000, at the small west-side apartment of Vanessa Rico's then-boyfriend. Rico put Valeria and her 2-year-old son, Antonio, in a bathtub with the water running. Then she closed the bathroom door and left the apartment.

Rico stepped out to the parking lot, where she chatted with a young man who had driven her to job interviews that day. Two other women were in the apartment, but Rico never asked them to look after the kids.

Early reports suggested Rico left for up to 20 minutes, but more likely it was about five. During her absence, one of the other women finally checked on the babies.

She found Valeria face down in the more-than-half-filled tub, as Antonio stood near the running faucet, the drain stopper in place. The woman snatched the motionless child from the water. Someone screamed for Rico, who fainted when she saw her baby. Valeria was 19 pounds and in excellent health when she died.

Rico lied to police about what had happened, saying she'd just left to fetch a towel from another room for a minute or two.

Within a day of Rico's arrest, Peoria police arrested 20-year-old Janis Anne Perry on similar charges after the bathtub drowning of her daughter, Kataryna. Born with Down syndrome, the 19-month-old had the developmental level of a 10-month-old. She drowned as Perry checked the mail outside, then spoke with a girlfriend on the phone in another room.

Maricopa County Attorney Rick Romley soon announced that his prosecutors would file charges against any caretakers deemed criminally negligent in caring for children, whether the deaths or injuries were accidental or not.

"When a parent fails to perceive a substantial and unjustifiable risk to a child," Romley said after the arrests, "the line between accident and criminal conduct is maybe crossed. In [the Rico and Perry] cases, the facts established that the line has been crossed."

What he meant was Rico and Perry had put their babies in harm's way by placing them in tubs, then leaving the bathroom, a different situation than one involving a parent whose child somehow fell into a pool and drowned.

Talk-show hosts, news columnists, and 77 percent of local citizens in a Channel 15 poll backed Romley. Some compared the local women to Susan Smith -- the South Carolina mother who drowned her two young sons in a lake to free herself for a romance.

Rico and Perry both pleaded not guilty.

But it took a Superior Court jury only a few hours last July 9 to convict Vanessa Rico. On September 21, Judge Eddward Ballinger Jr. sentenced the young woman to probation, though he could have sent her to prison for up to four years.

And on October 12, Janis Perry pleaded guilty to negligent homicide in her case.

Prosecuting caretakers for unintentionally causing a child's death is a knotty task: The accused may be technically guilty under the law. But, in the Rico and Perry cases, police produced little evidence that the mothers meant to hurt their babies.

Despite Romley's highly publicized intentions to aggressively prosecute child neglect, his office hasn't filed charges against anyone in more than a year for negligent homicide or abuse in accidental child injury or death cases.

"That's because we look at each of these cases really carefully," says Cindi Nannetti, head of the office's sex-crimes unit. "Rick doesn't take these matters lightly, and it's our job to prosecute those cases that make sense to us to prosecute."

Still, the number of child drownings countywide has remained steady in the past year. Twenty-six children have drowned so far in 2001 (14 under the age of 5), compared with 28 (15 under the age of 5) for all of last year.

Unfortunately, child neglect isn't limited to drownings. Children perish in hot cars, on city streets, even from accidental shootings when adults leave guns within reach. Romley would have had many cases to choose from, according to a New Times examination of incident reports at the Phoenix Fire Department, news reports, and interviews with law enforcement.

A few examples of troublesome child drownings from the past year:

 A 4-year-old boy visiting from Ohio who drowned in a north Scottsdale pool after his mother left him alone "for a few minutes."

 Two brothers, ages 2 and 4, who drowned in their grandmother's west Phoenix pool, where the water was so green and murky that firefighters didn't know the second brother was submerged until minutes after they pulled out the first. One of the boys had been missing for about 20 minutes.

 A 3-year-old north Valley boy who wandered through an open gate, fell into his grandparents' swimming pool, and drowned. He went unnoticed for an hour.

 A 9-month-old boy who, just last month, drowned in a pail that held about five inches of dirty water. He'd been submerged for several minutes.

 A 14-month-old west Phoenix infant who crawled past a patio door and fell into an unfenced pool at an unlicensed day-care home. The toddler was one of 11 children at the residence, and had been underwater for about five minutes before another child spotted her.

There also have been numerous cases of near-drownings, in which children have suffered serious brain damage and lesser injuries.

In fact, the Arizona Child Fatality Review Team recently concluded that, of the 187 child-drowning deaths statewide from 1995 to 1999, 86 percent could have been prevented. About nine of 10 child drownings occurred because of poor supervision by adult caretakers and, in cases involving residential pools, the lack of adequate barriers between home and water.

If a child drowns in a pool because of a caretaker's inattentiveness, or because of a faulty or nonexistent pool fence, doesn't that meet the definition of child abuse under Arizona law?

According to the law: "Any person who causes a child to suffer physical injury or abuse . . . or permits a child to be placed in a situation where the person or health of a child is endangered is guilty of [felony child abuse]."

Dr. Mary Rimsza, one of the state's leading experts in child abuse, suggests Rick Romley has targeted poor single mothers for prosecution, while letting people with financial resources go free.

"If you're going to prosecute only a small number of these preventable deaths, then how do you make sure it's not being done with bias toward those of a lower socioeconomic status, or their ethnicity?" says Rimsza, who chairs the Arizona Child Fatality Review Team, a statewide task force that analyzes every child death. "I'm just not sure of the logic that they are using in deciding who to prosecute.

"We haven't seen one prosecution for criminal negligence of someone who failed to adequately supervise a child in a pool. Is this because only the rich have pools? Are these drowning deaths any less negligent than those that occurred in a bathtub? I'm concerned that, if the laws are interpreted liberally, there will be an awful lot of parents who will be facing prosecution."

Romley spokesperson Bill FitzGerald bristles at the notion that the office targets anyone on the basis of socioeconomic status or otherwise.

"Mary Rimsza is absolutely wrong about that," FitzGerald says. "We take each case as it is submitted, and look at the individual nuances that each case has. If we think it is a case that is solid, we go for it. That's it."

Adds Romley, "We understand that parents make mistakes. There has to be some aggravating factor. You consciously put the child in danger. The negligence has to be significant. It has to be more than just having made a mistake. They have to be aware that it could cause serious injury or death."

During the late 1990s, Tim Ryan won a reputation as a fierce advocate for children in his capacity as a prosecutor with the Maricopa County Attorney's Office.

As a member of the Family Violence Unit, Ryan faced the worst of the worst at trial -- generally parents and guardians who had pummeled, burned, stabbed, scalded or murdered the young children in their care.

In 1997, he won a first-degree-murder conviction in the horrific case of Brian E. Anderson, a Mesa man who had beaten his 4-year-old stepson, then held him underwater until the boy drowned. One key piece of evidence was a telltale handprint on the victim's face. Though Ryan sought the death penalty, a judge sentenced Anderson to life in prison.

Now in private practice, Ryan says he doesn't understand why Rick Romley's office is set on prosecuting cases like Vanessa Rico and Janis Perry.

"I know that Rick has always taken a heightened interest in seeing that every child death is properly investigated and reviewed," Ryan says. "But are they changing the standard for criminal prosecution in a way that will allow the office to be perceived as focusing on minorities and poor women?"

Ryan says most senior prosecutors during his tenure balked at prosecuting caretakers for what seemed to be accidental, if deadly, lapses in judgment: "I remember the [East Valley] grandmother who left her grandson in the car. She was helping her boyfriend run a business, and also was taking care of her daughter's kid. She was just so busy that she left the baby in the car, and he roasted to death -- a horrible death.

"Our Incident Review Board [senior attorneys and supervisors] concluded that she was a loving person who just screwed up, and that a jury would never convict her because her appearance was so genuine, and she was inconsolable."

What, Ryan asks, is different between that case and Vanessa Rico's?

"Let's change a few facts," he says. "Instead of drowning in a tub or frying in a back seat, someone leaves the back door open, gets distracted by a phone call, and a kid falls into a pool and drowns. It's still inattentiveness. That's the Pandora's box they've opened. You're going after people who wish they were dead instead of their child."

Ryan recalls that, in another case, he addressed the board as it contemplated prosecution of a Gilbert couple who also made the fatal mistake of leaving their baby in a scorching car.

"This couple had a bunch of kids, and I spoke about what's it like to be part of a large family," says Ryan, one of 11 siblings. When Ryan was about 4, he told the board, his father -- an eye doctor -- took him and eight of his siblings to northern Arizona to go sledding. On the way, they stopped at a Payson trading post, where Tim somehow got separated from his father. Trouble was, Dr. Ryan didn't know Tim was gone for almost two hours.

"A lady at the store took me to the nearby DPS [Department of Public Safety] station, and I stayed there and had fun until my dad finally figured it out, and came back down and got me. Was he, quote, inattentive? Sure. Could have done a better head count. But if something had happened to me, should he have been prosecuted? No way."

The board declined to prosecute the East Valley couple.

In late June, Superior Court Judge Barry Schneider met with the opposing attorneys in the Vanessa Rico case. Such meetings are standard before a scheduled trial, as a judge tries to get a feel for the way the case might go, including any possibility of a plea bargain.

Schneider asked deputy county attorney Maria Armijo why she was prosecuting Rico on the negligent homicide charge, according to an affidavit filed by Armijo.

"He sees this [Rico] case only as a tragedy and not as a criminal act, and that there is nothing that could really come out of charges . . . [and that] Ms. Rico would think about her daughter every day and live forever with it," the affidavit says. "[Schneider] said that if he were the elected official, he would not charge this case. [He said] if we should charge this, we should charge all of the pool drownings."

Armijo called for Schneider's removal from the case because of alleged "bias and prejudice" against the state. The judge soon recused himself.

Schneider wouldn't discuss the Rico case with New Times, but said Armijo's affidavit generally was accurate. The judge's closed-door comments were not unique in the debate over the propriety of charging parents in their children's preventable, but still accidental, deaths.

Until recently, the attitude of prosecutors around the nation tended to mirror Schneider's. Ten years ago, the Maricopa County Attorney's Office was much more lenient toward parents who had made a terrible mistake. One particularly troubling case involved a 5-month-old child who'd been left in a parked car when the temperature outside was 108 degrees. Somehow, that child survived.

"This is a very difficult area for everyone," office spokesperson Bill FitzGerald told New Times in explaining then why the Valley mother was not being charged, "including the police, firefighters, the prosecutors. Where do you draw the line, and say the parents have been through enough?"

The enough-is-enough concept when it comes to accidental child drownings still holds sway in some jurisdictions, including Los Angeles County. Sandi Gibbons, a public information officer for the District Attorney's Office, says that in her 12 years on staff she can't recall any prosecutions similar to the Rico or Perry cases.

"We'll go hard as can be on intentional child abuse or assault or whatever," Gibbons says. "But not for a kid drowning when you were stupid enough to leave the room or the pool area for a few minutes."

Elsewhere, however, the attitude is changing. In Park City, Utah, a man was sentenced to one month in jail earlier this summer after being convicted of negligent homicide in the death of his 28-month-old son. The man left the child in his pickup truck, then went to scout hunting locations for about an hour. The boy opened the door, wandered into the wild, and froze to death.

And last month, Pima County prosecutors filed their first negligent homicide charges in a child drowning incident with distinct similarities to the Maricopa County cases. Pima County Attorney chief criminal deputy Rick Unklesbay says that, on August 2, single mother Monique Castillo left her 2-year-old son and 13-month-old daughter alone in the bathtub. She then chatted outside with a neighbor for about 10 minutes. During that time, the little girl drowned.

Castillo has pleaded not guilty.

"These are very tough cases," Unklesbay says. "You're dealing with families who already have suffered a loss, and so this does compound the tragedy. You're not dealing with criminals, per se, here. You can't say it was an intentional act, so you have to look at it as being so negligent. I think the public understands the need for us to look hard at these cases, as long as it has to do with someone else."

Kids drown in pools, Jacuzzis, canals, bathtubs, buckets, just about whatever they can get into.

The federal Centers for Disease Control and Prevention in Atlanta says drowning remains the number one cause of death of children from birth to 4 years old. Predictably, the main factors that lead to drownings are lack of supervision and lack of barriers.

Though most of the Valley's jurisdictions now require pool fencing or other safety devices, many of the 200,000-plus residential pools lack adequate barriers, according to fire department officials in Phoenix and elsewhere.

But even if every homeowner were to build an impenetrable fortress around his or her pool, children will continue to drown unless their caretakers are relentlessly alert. Being perfect, as every parent well knows, is humanly impossible.

"It's like a time bomb back there in those pools," says Mary Rimsza, herself a mother of two. "Parents need to be vigilant every minute of every day. Unfortunately, people are people, and people make mistakes."

The guilt that parents feel when their child drowns -- whether they were responsible in some way or not -- is unfathomable. Some of those parents say prosecutors ought to be extremely cautious before charging caretakers in child-drowning cases.

"I think you have to ask if it was malicious or intentional before you move forward in a prosecution," says Gilbert resident Druann Letter. "Did she have a 12-pack of beer in her? No, she didn't. I really think she didn't know that leaving her child in the bathtub was a dangerous thing to do. She wasn't educated, and she just didn't know any better."

On May 31, 1998, Druann and Tom Letter were going about their business at their home in Gilbert when their world collapsed. Druann was looking after her 8-week-old twins inside the residence, while her husband, a Tempe firefighter, was fixing a car in the garage.

Just for a moment or two, it seemed, each parent lost sight of their 3-year-old son, Weston, as he played alone near the pool. During that time, Weston, who was a good little swimmer, fell into the water and drowned.

Druann Letter later started Water Watchers, a nonprofit group that educates the public about water safety. She also works as drowning prevention and awareness coordinator for Phoenix Children's Hospital.

Letter says she tracked the Vanessa Rico case through the prism of her own sad experience.

"Some people believe that I should have been prosecuted for not having a fence all the way around, and for not having my eye on Weston when he drowned," she says. "We were the most overprotective parents around, that's what everyone used to tell us. Until you live in Ms. Rico's shoes, you're not going to get it. You feel like you're not in existence anymore. There's nothing worse than having to visit your child at his grave. Nothing worse than knowing that you could have prevented your child's death. A jail cell is nothing compared with that."

John Harrington Jr., another child-drowning prevention activist, lost his 3-year-old son Rex to a pool drowning in 1986. The circumstances were cruelly simple:

Neither Harrington nor his then-wife was at home, and the child's teenage baby sitter went inside to fix a sandwich for another child. She left Rex by the edge of the pool. He fell in, and drowned.

Harrington, now president and chief executive officer of the Arizona Heart Hospital, founded the Drowning Coalition of Central Arizona after his son's death, a group that is still going strong today. Like many people interviewed for this story, Harrington is ambivalent about prosecuting people for criminal negligence in their child's accidental death.

"Sticking your kid in a full tub may have crossed the line, though each case needs to be weighed, and carefully," he says. "Kids wander into the street, into the desert, and where were the parents? Where do you set the definition? I don't think there is a solid answer here, though, personally, I don't think the threat of prosecution is going to make anyone think, 'This is gonna happen to me.'"

However, Harrington's activist comrade, Ed Swift, comes to it from a slightly different perspective. Swift is a computer company owner whose Web site, www.sosnet.com, is a potent resource of drowning statistics, safety information and other data. He says he got involved in the issue because of his friendship with several Phoenix firefighters.

"I do have mixed feelings about this," Swift says. "The circumstances have to be pretty severe in an accidental drowning case, such as when someone walks out for 10 or 15 minutes, leaving their kid alone. Come on, now, that's severe."

Retired Mesa police detective Don Ryan -- no relation to Tim Ryan -- is no stranger to terrible things, intentional and unintentional, that parents have inflicted upon their children. But Ryan says prosecuting Rico-like cases is needless.

"There are so many drownings and other things where you just want to grab the parents and ask them, 'What were you thinking?'" he says. "But when you look deeper, sometimes you find out they're going to hell inside of themselves. I'm not talking about the beaters, molesters, killers, evil people. I'm talking about good parents in some cases who did a bad thing, sometimes just a five-minute bad thing."

At first blush, the public seems to want much tougher treatment of negligent caretakers -- until it comes to themselves. New Times recently spoke with seven people at random at Paradise Valley Mall, including two young mothers with children in tow.

Each of the seven -- five of whom are parents themselves -- applauded the prosecutions of Vanessa Rico and Janis Perry.

"You just don't put your kid in a tub and then split," said John Lugo, the Phoenix father of a 4-year-old girl. "There's just no excuse for putting her in a place where she could get hurt."

But all but one of the seven reconsidered their position when asked, "Have you unintentionally ever put your child somewhere where he or she was at risk for serious injury or death?"

"Of course I did, and my babies were very lucky," said Joyce Spencer, a 44-year-old Scottsdale insurance agent. "I remember this like it was yesterday. We had a pool without a fence. This was a long time ago, and we were stupid. My 2-year-old was playing near the pool, and my nephew -- he was 8 or 9 -- was over swimming. I ran in to get the phone. I think I told my nephew to keep an eye on my Ralphie. I'm gone three or four minutes, tops. As I walk back out, I see Ralphie tumble in the water. I jumped in and got him out, and he was fine. But he really could have drowned."

Spencer is asked if she should have been charged criminally if he had drowned.

"Hmmm," she replied, stroking the head of her 3-year-old granddaughter. "I don't think so. Maybe. But maybe not. I really don't know."

Vanessa Rico never did testify at her trial, in part because she surely would have admitted to the jury that she had erred in leaving her babies unattended in the tub.

"Yes, I think it was my responsibility to be there with my baby," Rico told New Times shortly before her sentencing last month. "I have to live with what I did until I die. . . . But I see all those other people who screw up and don't get arrested and put on TV. Why did they pick on me and that other girl [Perry]? I am guilty of a bad accident."

One reason Rico did escape jail or prison after her negligent homicide conviction was the favorable report of the Adult Probation Office.

Probation officer Paul Anderson noted that Rico only had a minor brush with the law -- driving without a license -- before Valeria's death, and that he could find no evidence of prior substance-abuse problems.

"It is unlikely [she] acted with malice, or that the death of Valeria Romero was anything but an accident," Anderson wrote. "[Rico] does not appear to pose a threat to the community, and this writer believes that the interests of the victim, community, [her] remaining children and [Rico herself] would be best served if [she] were placed on probation."

Judge Ballinger adopted all of Anderson's recommendations -- including ordering parenting classes and community-service training. It seemed Rico would stand a good chance of getting her two surviving children returned to her, as early as next spring. The pair have been in foster care since their mother's arrest, though authorities had allowed her regular supervised visits.

But Immigration and Naturalization Service officials detained Rico soon after she was sentenced. Rico, who has been living in the States illegally since moving here from Mexico as a young girl, has been shipped to Eloy to await disposition of her case. If she is deported, what will happen to her two children is uncertain.

Rico had spoken in the days before she was sentenced of getting back her two surviving children and starting a new life, with her new boyfriend.

"I am Catholic and I pray every day," she said. "I pray for my angel [Valeria], and I pray for my other kids, too. I pray for myself to be there for my kids when I get them back, and to be fast, because you don't know what's going to happen. I know that people hate me, but I'm not a bad person."